HKSAR v. Lam Sai Cheung

HCMA001141/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1141 OF 1997

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Coram : The Hon. Madam Justice Beeson in Court

Date of Hearing : 26 February 1998

Date of Delivery of Judgment : 26 February 1998

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on one count of Theft. The Appellant was a customer services supervisor employed by IKEA at one of its branch shops and thus in a junior managerial position.

2. During an inventory count, a baby changing table was found missing and the matter was reported to the manager. Appellant came under suspicion because a plastic bag with something white and foldable inside was seen in his office and later he left the shop carrying a paper box. The Appellant was questioned a few days later by the branch manager, the personnel director, the accounting manager and the finance and administration director who investigated the loss of the changing table. Although at first Appellant denied any knowledge of the matter, eventually he admitted his involvement; he said that he had taken home the item without paying and asked the company for a chance.

3. The Appellant was asked to write out a note admitting his wrong doing and it is the status of that "confession note" that is the basis of the major ground of appeal. At a later stage, two records of interview were made, and in those statements the Appellant admitted that he received the changing table in the course of his duty, but denied taking it home.

4. The Appellant argued that the learned Magistrate erred in finding that the confession note was voluntary and that even if he had not fallen into error on that matter, he should have exercised his discretion and excluded it on the basis of unfairness.

5. The other grounds of appeal were not, in my view, of any substance and I disregarded them.

6. The status of the confession note fell to be examined; it was argued that this evidence was obtained after the Appellant's initial denial as a result of questioning by 4 senior members of IKEA staff who were, for this purpose, persons in authority. Second it was argued that as the purpose of attempting to obtain the confession was not for it to be used in a prosecution, but for the purpose of summary dismissal as part of company policy, that it should not have been relied on as Appellant was not cautioned in any way before this was done. There was evidence that it had been company policy not to prosecute people who had confessed in this manner. It was stated that the interview was not recorded and that it was obtained only after a misrepresentation of the strength of the case against the Appellant. It was submitted that even on the prosecution evidence, there was at least a reasonable doubt as to the voluntariness of the alleged confession.

7. The Magistrate recognized that the crucial evidence against the Appellant was the oral admission in response to questioning and the confession note that he signed later. He held a voir dire using the alternative procedure: the importance of the confession note was obvious to the Magistrate and there was extensive cross-examination of the witnesses to determine its voluntariness. The Appellant elected to give evidence on the special issue. The Magistrate was satisfied no threats or inducements had been made to the Appellant in relation to the confession note and he admitted both the oral and written admission as evidence on the basis they were made voluntarily and that there had been nothing unfair in obtaining them, that would justify his exercising his discretion to exclude them.

8. Although the confession note was not a cautioned statement in the true sense, the Magistrate acted properly in holding a voir dire before admitting it into evidence. The facts relating to the purpose for which the note had come into being and the manner in which it had come into being were before the Magistrate. It was for him to decide on the basis of the prosecution evidence whether or not that was a voluntary statement in the light of the objections raised by the Appellant. The Magistrate concluded that the confession note was voluntarily given and that he was entitled to rely on it. There is nothing improper about the procedure employed nor is there any reason why a confession note obtained in these circumstances could not be used at trial, even though it may originally have been intended for another purpose.

9. The Appellant was not in the position, for instance, of a customer who had been accused of shoplifting and had been taken in and forced to write a statement of admission. He was in a junior managerial position, he was obviously aware of his company's practice in relation to incidents of this nature. It does not appear from the evidence that he was under any misapprehension as to the true position.

10. I accept that for the purposes of considering voluntariness the persons who questioned the Appellant would come into the category of persons in authority. However, that is not a fact that would have escaped the Magistrate given the exhaustive examination of those witnesses. It was for the Magistrate to decide whether or not he should accept the statement as voluntary and if he did it was a matter for his discretion thereafter as to whether or not it should be excluded on grounds of unfairness.

11. The Appellant was not a junior member of staff and that being the case it must be accepted that the managers had the right to investigate the disappearance of an item of inventory in the manner that they did.

12. I cannot find this conviction unsafe and I dismiss the appeal against conviction.

Representation:

Maggie Yang, S.G.C. for D.P.P.

James McGowan, instructed by M/s Ivan Tang & Co. for Appellant.

Appellant's application for leave to appeal to Court of Final Appeal dismissed by Appeal Committee of Court of Final Appeal. Please refer to FAMC3/1998 dated 29 July 1998